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Plaintiff Sheila Wolk is a visual artist who discovered copies of her copyrightedimages on Photobucket. Photobucket is a web service that hosts billions of photos for users around the world. After discovering the images, plaintiff sent several notices to Photobucket requesting their removal; some of these notices were compliant with the Digital Millennium Copyright Act ("DMCA") and others were not. Whenever Photobucket was able to reasonably identify the image or images referenced in plaintiff's notice, it removed the images in due course. Like Viacom[1] and UMG Recordings[2] before her, plaintiff got tired of sending letters and expected Photobucket to remove all of her images without further notice. Because Photobucket did not conduct its own search for Plaintiff's images, plaintiff brought this action for a preliminary injunction.

Plaintiff’s motion relies on her contention that her past notices serve as DMCA-compliant notice of other material that may be found on Photobucket’s site. This position places an unduly burden on any ISP seeking a safe harbor under the DMCA and would require service providers to continually monitor their sites for infringing material. It should be noted that avoiding such a requirement for independent inquiry was one of the driving motivations behind enactment of the DMCA safe harbor in the first place.

Finally, plaintiff argued that Photobucket’s relationship with Kodak under which it receives a share of sales derived from Photobucket.com, is “a financial benefit directly attributable to the infringing activity.” While such a finding might deny Photobucket a safe harbor pursuant to 17 U.S.C. §512(c)(1)(B), there was no dispute that Photobucket derived financial gain from all users of its site, not only in connection with infringing material.

In denying plaintiff’s motion for a preliminary injunction, the court noted that "[i]rreparable harm is the 'single most important prerequisite' for a preliminary injunction to issue.”[3] By plaintiff’s own admission, many of the allegedly infringing photos had been on Photobucket’s site since 2008, leading the court to find an unreasonable delay in bringing this action. Further, if the plaintiff was aware of the infringing material that had not yet been removed, she was well within her rights and ability to issue additional take-down notices.

Her desire to shift the burden to Photobucket did not lead to a showing of irreparable harm and the balance of hardships certainly did not weigh in plaintiff’s favor when a method of removing the images in question already exists.